CA Unpub Decisions

A jury found defendant and appellant Jose Luis Lara (hereafter defendant) guilty of driving under the influence of alcohol and causing injury in violation of Vehicle Code section 23153, subdivision (a) (count 1) and leaving the scene of an injury causing accident in violation of section 20001, subdivision (a) (count 3). After defendant waived his right to a jury, the trial court found that defendant had previously been convicted of burglary, a serious or violent felony within the meaning of Penal Code sections 667, subdivision (b) and 1170.12, subdivisions (a) through (d). After denying defendants motion to strike the prior conviction, the trial court sentenced defendant to serve a total of five years four months in state prison.
In this appeal defendant contends that the trial court should have instructed the jury on purported lesser included offenses to the charged crimes, that the trial court prevented defendant from presenting a defense, that the evidence was insufficient to support the jurys guilty verdict on count 3, that trial counsel was ineffective, and that the trial court should have set aside defendants prior serious felony conviction. Court conclude, for reasons we explain below, that defendants claims are meritless. Therefore, Court affirm the judgment.

An information was filed in Kern County Superior Court, charging appellant James A. Torres with attempted kidnapping of a child under the age of 14 (Pen. Code, 208, subd. (b), 664; count 1), attempting to remove or take a peace officers firearm while resisting said officer ( 148, subd. (d); count 2), and resisting an executive officer in the performance of his or her duty ( 69; count 3). Appellants first trial ended in a mistrial when jurors deadlocked on all counts. Upon retrial, a jury acquitted appellant on count 1 and all lesser included offenses, convicted him on count 3, and, with respect to count 2, acquitted him of the charged offense, but convicted him of the lesser included misdemeanor offense of resisting arrest ( 148, subd. (a)(1)). Imposition of sentence was suspended on count 3, and appellant was placed on probation for three years on condition that he serve one year in jail. A concurrent 90-day jail term was imposed on count 2. He now appeals, claiming his suppression motion should have been granted and that various errors occurred at trial. The judgment is reversed.

This is an appeal from judgment after defendant and appellant Faviola Garcia Rios was found guilty of one count of petty theft with a prior. (Pen. Code, 666.) Defendant contends the court prejudicially misinstructed and failed to instruct the jury and erroneously excluded certain defense evidence. Court affirm the judgment.

This case is before us again after we remanded it to the trial court because it had not ruled on all of the grounds raised by plaintiff Elsa S. Shuster in her motion to certify a class action for her complaint for restraint of trade under the Cartwright Act (Bus. & Prof. Code, 16720 & 16726) and by defendants California Auto Dealers Exchange, Inc., California Auto Dealers Exchange, LLC, Manheim Auctions, and Jim DesRochers in their opposition to the motion. (Shuster v. California Auto Dealers Exchange, Inc. (Oct. 26, 2004, G032163) [nonpub. opn.].) Plaintiff argues the trial court erred when it did not allow her to file a new certification motion, including the declaration of an expert, but instead considered only the prior motion. She also claims the court made erroneous legal assumptions and applied improper criteria when it ruled she had not produced sufficient evidence of common proof of damages. Court disagree and affirm.

A jury convicted Krysten Webber of aiding and abetting the first degree murder of Steven Hartt (see Pen. Code, 187, subd. (a); all further unlabeled statutory references are to this code, unless otherwise noted), and found true the special circumstance that she committed the murder in the course of a robbery ( 190.2, subd. (a)(17)(A)). The jury also convicted Webber of first degree robbery ( 211, 212.5, subd. (a)), and found she personally used a firearm in the murder and robbery ( 12022.53, subd. (b)). For the murder, the trial court imposed a sentence of life in prison without the possibility of parole, plus additional terms for the arming enhancement, robbery conviction, and Webbers guilty plea to possession of a firearm by a felon.
Webber contends a statement she gave to police following the murder should have been suppressed because she did not knowingly waive her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and because her lack of sleep and use of methamphetamine rendered any waiver involuntary. She also argues the trial court erred by not requiring the prosecution to disclose medical reports concerning a brain injury the victim previously suffered, which bolstered her claim he had a propensity to lash out angrily, supporting her self-defense claim. She raises four claims of prosecutorial misconduct and, lastly, asserts the trial court misinstructed the jury on the robbery murder special circumstance. Finding no basis to overturn the judgment, Court affirm.

Defendant Hotel Employees and Restaurant Employees Union, Local 681 (union), appeals from the judgment entered following a jury trial in favor of former union employees, Suzann Milkey, Frances Dunlap, Lucille Chalfa and Valerie Hollins (collectively plaintiffs), in their wrongful termination action against the union. The appeal challenges the judgment only as it pertains to Milkey and Dunlap. Court affirm.

A jury convicted Jose Othon Orozco of attempted murder (Pen. Code, 664, 187, subd. (a)), being an active gang member with a concealed firearm ( 12025, subds. (a)(2) & (b)(3)), street terrorism ( 186.22, subd. (a)), and possession of a firearm by a felon ( 12021, subd. (a)(1)), and found, inter alia, he committed attempted murder for the benefit of a criminal street gang and possessed a firearm as a felon for the benefit of a criminal street gang. On appeal Orozco contends (1) the prosecutor improperly cross-examined him; (2) insufficient evidence supported the allegation he committed any of his crimes for the benefit of a criminal street gang; (3) the court erroneously instructed the jury on flight after a crime; and (4) the court erroneously failed to award him presentence custody credit. Court agree Orozco is entitled to presentence custody credit. In all other respects, Court affirm the judgment.

This is an appeal from an order issued May 9, 2005 to distribute funds held in escrow after the termination of a receivership involving the real property of Benjamin Rogers (May 2005 Order). Although far from clear from their poorly drafted briefs, appellants City of Oakland and its receiver Alton Management Corporation (collectively, appellants) ask this court to vacate the May 2005 Order on the grounds that (1) a final order that issued on February 13, 2004, decided the same issues in a different way, and thus is res judicata with respect to those issues; and (2) the May 2005 Order was obtained by fraud or mistake in that Rogerss attorney represented Rogers in opposing reconsideration of the order after Rogers died on May 17, 2005, but before notifying the trial court of his death. Court affirm.

Appellants (petitioners) seek reversal of the superior courts denial of their petition for writ of administrative mandate, as well as an order directing issuance of a writ to the San Francisco Board of Appeals instructing them to reconsider petitioners permit application and make legally relevant findings. Court affirm the superior courts denial of their petition.

Kevin P. (father or appellant) appeals from the orders terminating his parental rights as to T.H. and K.P. and approving the permanent plan of adoption. He contends that the trial court erred by failing to apply the sibling relationship exception of Welfare and Institutions Codesection 366.26, subdivision (c)(1)(E), with respect to the childrens half-sibling, E.H. Court affirm.

Virginia O. Fuller (wife) appeals from an order incorporated into a final judgment of dissolution of marriage enforcing a marital settlement agreement entered into by the parties on September 30, 2005. She contends that the agreement is unenforceable because certain provisions are ambiguous and vague, and thus the trial court had no basis to find that there was a meeting of the minds. Court affirm.

Hanford Freund & Company (Hanford), a managing agent for commercial real property, filed a complaint against tenants Giuseppe Scoppetta and Guiseppe Spinoso for rent payments, property taxes, utility charges, and late rent fees. The trial court granted summary judgment against Hanford, finding that Hanford failed to raise a triable issue of fact that it suffered any damages. Hanford appeals and Court affirm the lower courts ruling.

Alex Kumar and Custodians of Records of Best Vineyard Valley Inn and Cloverdale Oaks Inn (collectively Petitioners) petition this court for extraordinary relief from an order of the Sonoma County Superior Court. The superior court ordered Petitioners to comply with legislative subpoenas issued by the City of Cloverdale (City) for the production of business records necessary for auditing their compliance with the Citys transient occupancy tax (TOT). Court deny the relief sought.

Following a contested hearing, the juvenile court sustained a two count petition alleging that 17 year old Harold M. had been in possession of methamphetamine and a device for smoking a controlled substance (Welf. & Inst. Code, 602; Health & Saf. Code, 11377, subd. (a), 11364, subd. (a)), and ordered him suitably placed (with a term of confinement not to exceed three years (for the drug), two months (for the device)) with probation conditions. Harold appeals, challenging the sufficiency of the evidence and a term of probation, and in his concurrently considered petition for a writ of habeas corpus claims ineffective assistance of counsel with regard to the smoking device. Court grant the petition, reverse in part, modify the order and, as modified, affirm.